ROSS REILLY AGAINST LEE BRODIE
SHERIFFDOM OF LOTHIAN AND BORDERS AT EDINBURGH
[2016] SC EDIN 36
A565/14
JUDGMENT OF SHERIFF T WELSH QC
In the cause
ROSS REILLY
Pursuer;
Against
LEE BRODIE
Defender:
Act: Thorley, Thorley Stephenson, Edinburgh
Alt: Grant, Young & Partners LLP, Dunfermline
At Edinburgh, on 3 May 2016, the sheriff having resumed consideration of the cause, sustains the second and third pleas in law for the defender; dismisses the action; assoilzies the defender from the craves of the writ and finds the pursuer liable to the defender in the expenses of the action; thereafter allows an account of expenses to be given in and remits the same to the auditor of court to tax and report; and thereafter, discerns.
Note
The Issue
[1] On 22 March I heard a debate in this case. The pursuer sues the defender for payment of £15,000 with interest said to be due following the sale of his fishery business, Selmuir Fly Fisheries, to the defender. It is averred that the sale was concluded between September and November 2012 but the defender never paid the agreed purchase price. The defender does not dispute that negotiations between the parties reached an advanced stage but avers a bargain was never concluded. The debate was based on the defender’s second and third pleas in law which state that the pursuer’s case is irrelevant, lacks specification and separately that as no contract is relevantly averred between the parties, the defender should be assoilzied from the craves of the writ. The pursuer contests the merit of these pleas and offered a proof before answer at a continued options hearing on 6 August 2015. However, Mr Thorley, for the pursuer, argued the case should now be remitted for proof on the basis that his averments provide sufficient specification of the pursuer’s case and a relevant contract of sale has been averred, to warrant proof of the facts averred.
Adjournment and Minute of Amendment
[2] At the outset, Mr Thorley made a motion to adjourn the debate and for leave to lodge a further minute of amendment. A diet of debate was previously discharged on 1 October 2015 because of a late amendment. The new minute, it was said, would lay a basis for proof of certain photographs of the fishery site in dispute and provide details about a website which is said to be associated with the fishery business. Ms Grant, for the defender, opposed the application and indicated that if the minute was allowed she would need an adjournment to make inquiries about the website, although she indicated the photographs were of a different fishery from the one in dispute. She would require more time to make investigations and answer any proposed minute of amendment. I was not prepared to lose another diet of debate and refused the pursuer leave to amend at this late stage.
The Pleadings
[3] The amended closed record avers, in its material aspects, that the pursuer operated a business ‘Selmuir Fly Fisheries’ from a leased site in Livingston. The pursuer, it is said borrowed £15,000 from the Royal Bank of Scotland, to develop the business. The money was used ‘to set up the business, obtain the stock, take on the lease and in addition obtain the equipment necessary to run a fishery.’ The pursuer had a business partner, Gary Christie, but he left the business at a time unspecified. However in or about 2011 it is averred the pursuer opened negotiations with the defender about becoming a partner in his business. It is said the defender ran a fishing tackle shop in Livingston and the negotiations took place at that tackle shop and at the fishery site itself. The writ avers the defender wanted to buy out the pursuer and operate the business himself. The averments contend that the defender agreed to pay the sum of £15000 to the pursuer ‘in order to take over the business’. The writ states, ‘The business consisted of the lease of the fishery, the stock and the equipment’. It is then stated that a series of texts were exchanged between the parties between 28 September 2012 and 30 November 2012 which are incorporated into the writ. It is said the text messages confirm that the defender ‘wished to arrange a lease transfer and to make a payment of £15000’. The writ continues that solicitors were instructed to prepare ‘the necessary paperwork which was never signed’. It is then averred that the defender ‘took over the business which incorporated the Fishery together with the stock together with all the equipment.’ The writ further avers ‘The contract was concluded in accordance with the said text message on or about 1 October 2012 at the point when the defender by text confirmed that he instructed his lawyers to draw up a payment agreement or £15,000 which should be ready on 1 October 2012. The defender had taken over the business on 1 October 2012 and was due to make payment at that time and payment was to be made, in accordance with the text messages repeated herein brevitatis causa, by 4 October 2012’ . The record then discloses in answer to the defender’s averments that the pursuer leased the site from a company called Potter Construction. No further specification is given about the lessor or the terms on which the land was occupied and used.
[4] The defender avers in so far as relevant to the debate that it is admitted the defender opened a tackle shop in Livingston and that discussions took place between the pursuer and defender. The defender avers that ‘the parties discussed the possibility of the defender buying the business of the fishery.’ It is averred that, after discussions, the defender concluded that the fishery was not a viable business and it is denied there was a concluded agreement that the defender would take over the business. The defender avers he never paid the £15,000 because there was no legal obligation so to do. The defender admits that the ‘paperwork’ was never signed.
Submissions.
Defender
[5] Ms Grant for the defender opened the debate and explained the procedural history of the case. She then indicated that she would present two arguments, which in her submission, justify dismissal of this claim:
- The record contains insufficient specification of the nature and extent of the legal basis of the defender’s case, particularly with regard to the lease of the fishery, to put the pursuer on notice of the legal case advanced. She also indicated as part of this sufficiency argument that the record contained contradictory averments regarding when contractual agreement was reached and whether a written agreement was required.
- In terms of the defender’s third plea, Ms Grant argued the pursuer’s averments are irrelevant as they do not aver a concluded contract with reference to general principle.
[6] In developing her case Ms Grant stated it is not disputed that the alleged contract for sale included the transfer of a lease of fishery. However, she said, the lease itself is not produced by the pursuer. The pursuer’s pleadings suggest a written contract was required in order to effect the lease transfer but they fail to specify the nature of the lease, the extent of rights the defender was to obtain, how this was to be transferred (e.g. was the landlord’s consent obtained) or whether the lease was actually transferred in some way from the pursuer to defender at some point. Accordingly, she said, the defender is unable to ascertain whether the pursuer’s case is that a written contract was required to effect lease transfer and if not, why not. Ms Grant referred to a number of authorities relating to fair notice. These included: Chapter 9 of MacPhail Sheriff Court Practice; Esso Petroleum Co v Southport Corp [1956] A.C. 218; Lord Advocate v Johnston 1985 SLT 533; Morrison’sAssociatedCo’s Ltd v James Rome & Sons Ltd 1964 SC 160; Ward v Coltness Iron Co 1944 SC 318. With regard to the argument directed at what Ms Grant called the pursuer’s contradictory averments she drew my attention to apparent contradictions ex facie of the record in relation to the requirement of writing to constitute the agreement viz, at line 3 on page 3 the pursuer avers “Solicitors were instructed to prepare the necessary paperwork which was never signed.” However, Ms Grant argued, the averments introduced by the most recent amendment state “The contract was concluded in accordance with the said text message on or about 1 October 2012 at the point when the defender by text confirmed that he instructed his lawyers to draw up a payment agreement …” Then the final sentence in Article 3 states “Paperwork was drawn up but never signed.” Ms Grant indicated it was not clear upon what legal basis the case was brought and she then referred to MacPhail, op cit, para 9.37; McSourley v Paisley Magistrates (1902) 10 SLT 86; Stanley Limited v Hanway 1911 SLT 2.
[7] Turning to her third plea in law, Ms Grant argued that even if the averments on record are proved they do not disclose a concluded contract between the parties. As I understood this argument Ms Grant argued that the nature of the contract was at least uncertain and hence void [May & Butcher Ltd v The King 1934 2K.B. 17; Avintair Ltd v Ryder Airline Services Ltd 1994 S.C. 270; N & J MacFarlane (Developments) Ltd v MacSween’s Trustees 1995 S.L.T. 619; Courtney & Fairbairn Ltd v Tolaini Brothers (Hotels) Ltd. & Another 1975 W.L.R 297]. However, even if there was consensus the contract averred contained a suspensive condition which provides that the agreement depended upon a written lease being executed and exchanged between the parties. It is not disputed this never occurred. Therefore the contract is either void from uncertainty or unenforceable because the suspensive condition was never fulfilled. Reference was made to Requirements of Writing (Scotland) Act 1995 s1; Van Laun & Co v Neilson Reid & Co (1904) 6 F 644; Gordon’s Executors v Gordon 1918 1 S.L.T. 407; WS Karoulias SA v The Drambuie Liqueur Co Ltd 2005 S.L.T 813.
Pursuer
[8] Mr Thorley informed me this is a case of specific implement of the terms of a bargain. It is not a case of damages arising from breach of contract. Mr Thorley argued that the pursuer sufficiently clearly avers in his pleadings that the parties had reached agreement that the defender was to take over the business which incorporated the fishery together with the stock and all the equipment. That contract was concluded in accordance with certain text messages by 1 October 2012 at the point where the defender confirmed he instructed lawyers to draw up a payment agreement. Mr Thorley stated there was record to establish that the defender had taken over the business by 1 October and was due to make payment of £15,000 at that time. It is not disputed that sum was never paid. The pursuer offers to prove that the parties reached agreement both in terms of their own verbal discussions and subsequently in accordance with their text messages and their actings, namely, that the defender took occupation of the site and accordingly, he said, the contract was established. Mr Thorley placed reliance on certain text messages which are incorporated brevitatis causa into the pleadings. These were sent between 30 September 2012 and 10 October 2012 between the pursuer (RR) and the defender (LB). These state:
30 September 2012 –
LB “I will contact linda tom arrange a lease transferr and will need bank account details to pay money into.”
1 October 2012 –
LB “Give me a shout when u get a min. Rent is due but not paying anything until we get some stuff sorted. I have instructed my lawyer to draw up a payment agreement for 15k. Should be ready today.”
1 October 2012 –
LB “Kev and lewis will bring the agreement to your home later if your busy will give you til 1pm as there is no need to be ignoring people.”
3 October 2012 –
LB “Not sure mate.should have in the office will be in a couple of hours. Lease should be with me today tom then will get things paid up mate.”
3 October 2012 –
LB “Lease is at home mate will take care of payments tom.”
5 October 2012 –
LB “Just made instant payment for loan and 1st payment for the business. I deducted 150 for the solicitors share as he still had to be paid for the work. Also deducted 300 as u took that extra on ur last week.”
5 October 2012 –
LB “It was Kev that reminded me that u were due the business. Unless I get money in my hand from whoever is due it then it wount be counted for I have no record of it being paid back but my books show its down so I have to go with that.”
10 October 2012 –
LB “Get that outboard back to the fisher. I am hold all funds just now as environmental health have told us to shut down for a few weeks due to you f**k ups. Spoke with my lawyer he said loss of earnings have to be taken from whatever money is due to you. They even know about a customer breaking a leg And all the f*****g septic waste if this costs me a fortune I wont let it lie.”
RR “How would they know any thing and what f**k ups was there? The out board that I have is my own personnel one.”
LB “My lawyer said he cant talk with you. U need to deal through a lawyer and have them send a letter to the fishery.”
RR “Ok that’s fine.”
[9] Mr Thorley stated that it is not disputed between the parties that there was no paperwork signed by solicitors to effect transfer of the lease. The pursuer he said offers to prove that the parties had reached agreement both in terms of their own verbal discussions and subsequently in accordance with their text messages and that subsequently by their actings the defender took occupation of the site. He argued it was a matter for proof that the defender has occupied the premises since October 2012 and continues so to do. The parties according to Mr Thorley are clearly at odds in their pleadings regarding the issue of whether the defender has occupied the premises solely on a residential basis or as a commercial fishery. Mr Thorley continued, the parties reached agreement that the defender would take over the business of the fly fishery and pay £15,000 to the pursuer. The defender in terms of the pleadings entered possession and is now due to make payment. There was a contract. It was specific. The defender has failed to implement his part of that contract.
[10] As I understood Mr Thorley’s argument it was the parties had reached agreement for the sale of the business. Thereafter he said rei interventus applied. That is what is averred, he said, namely that the acting of the defender in taking possession of the fishery means that he cannot now “withdraw” from the bargain. The defender has failed to implement his part of the contract. The defender has notice that is the case pled and proof should be allowed.
Discussion and analysis
The Remedy of specific implement in the sheriff court and the form of the crave of the writ
[11] Initially I had some doubt that an action for specific implement of an obligation to pay money was competent, under reference to Gloag and Henderson ‘The Law of Scotland’ 13th Ed para 10.03. This work suggests, under the heading ‘Cases where specific implement refused’, that an obligation to pay money under contract is an exception to the general rule that specific implement is competent, subject to the equitable discretion of the court. The section states ‘As a rule the sole remedy of a creditor is to enforce payment by diligence; he is not entitled to decree ad factum praestandum, which might result in the imprisonment of the debtor.’ However, the form of a crave such as the one framed in this writ has been subject to judicial consideration before and specifically approved (as a form of conclusion in a Court of Session summons) in Bosco Design Services Limited v Plastic Sealant Services Limited 1979 SC 189; see also, Ama (New Town) Ltd v Finlay Sheriff Court (Lothian and Borders) (Sheriff W Holligan), 19 August 2010, unreported (where approval was given to a like sheriff court crave, by analogy with a conclusion from a Court of Session summons); see also Newcastle Building Society v White 1987 SLT (Sh Ct) 81. Specifically in Newcastle Building Society Sheriff Principal Caplan QC, (as he then was) in an action of implement of missives for the purchase of heritable subjects, stated:
"There is no doubt that in actions by sellers to secure implement by
purchasers of missives it is established practice to crave or conclude for an
order for payment of the price with payment of damages as an alternative.
Moreover the practice has been authoritatively approved (see for example
Bosco Design Services Limited v Plastic Sealant Services Limited 1979
SLT (Notes) 33). Nevertheless where implement is to consist only of a
payment of a sum of money, a court order for such implement does not sit
very happily in a system of law which will not punish for non−payment of
money. Accordingly in such cases if the initial order for payment is not
implemented the court will not punish the defender but will usually move
on to award damages against him − assuming, that is (as is usually the
case), that some amount of damages is established or not contested. In
seeking implement a pursuer asserts the continuing applicability of the
contract. However, in moving on to ask for damages, the pursuer
impliedly first rescinds the contract on the basis that the failure to honour
the original court order is a material breach of contract by the defender...
It would seem that in many cases if the order for implement does not lead
to actual implement it may serve the purpose of defining circumstances
which can be regarded as a material breach of contract justifying
rescission. It has to be noted, of course, that an order to implement a
contract by paying the price against delivery of the disposition is different
from a straightforward decree for payment."
I also found the opinion of Lord Cullen in Retail Parks Investments Ltd v The Royal Bank of Scotland plc,1996 SLT 669 at 680 helpful:
“The assumption underlying the making of an order
ad factum praestandum is that it should act as a compulsitor.
It is clear in cases decided before the change
in the law which was effected by s 1 of the Law Reform
(Miscellaneous Provisions) (Scotland) Act 1940 that
the prospect of the drastic step of imprisonment
following the execution of personal diligence on an
individual to whom the order was addressed was an
important factor in influencing the court's attitude to
the terms in which a proposed order was expressed.
They required to be precise so that it was clear to him
what he had to do. It is true that this particular type of
enforcement has been brought within the control of
the court from the outset. However the fact remains
that the making of the order may have serious consequences
for the person, natural or juristic, on whom it
is made. The existence of this important consideration
is one reason for the need for precision. Another
is that if the order does not make it clear what is to be
done, it will be ineffective.
While the exercise by the court of its discretion
to refuse specific implement is dependent on the
circumstances of the case, there are recognised
categories of case where such an order is inappropriate.
Thus the court will not order what a party
cannot possibly fulfil. In McArthur v Lawson Lord
President Inglis observed at (1877) 4 R, p 1136 that
this was "because that would be to condemn the party
to perpetual imprisonment - 'Loco facti imprestabilis
subest damnum et interesse"'. This exception
is clearly based on equitable considerations. Then
there are cases, also noted by the Lord President, in
which on grounds of equity or policy the court will not
enforce certain contractual obligations, such as an
engagement to marry or to enter into a partnership. In
other cases where there is no special value attaching to
performance by a party of his contractual obligation,
and the other party can readily obtain implement at
his own hand, the court may withhold an order on the
ground that this is not required in order to achieve
justice between the parties.
On the other hand there may be cases in which the
objection to the granting of an order of specific implement
is directed to the terms which are sought to be
enforced by this means. There should not in general
be difficulty in the granting of an order which is based
directly on the terms of a contractual obligation,
assuming that the contract is not wanting in its essentials
and that the contractual obligation is not invalid for any reason.”
The contractual obligation in respect of which specific implement is sought
[12] Having satisfied myself that the crave is competent, I require to identify the nature of the contractual obligation which the pursuer seeks to implement. The pursuer avers a contract of sale of a fishery business. Mr Thorley’s position was that the parties agreed that in exchange for the purchase price, the defender would be entitled to an assignation of the lease containing a real right to occupy and use the property as a fishery. I took Mr Thorley to mean there was a single contract for sale of the fishery business, lock, stock and barrel. Mr Thorley, as I understood his argument, further stated the defender now occupies the disputed site on a commercial basis and is accordingly personally barred from withdrawing from the contract by virtue of the principle of rei interventus. Both parties agree on record that no assignation of lease was ever signed. Putting to one side the criticisms made by Ms Grant that the agreement between the parties was uncertain and contradictory (which I do not accept) and proceeding, for the moment, on the basis that Mr Thorley is correct and the text messages (if proved) do demonstrate the defender agreed to buy the fishery, it is clear, in my opinion, from the terms of the texts that the agreement to purchase was conditional upon a written lease or assignation of lease being drawn up. For example, the text of 30 September states “I will contact linda tom arrange a lease transferr and will need bank account details to pay money into”. This condition is reflected in the text of 3 October as well, viz “Not sure mate.should have in the office will be in a couple of hours. Lease should be with me today tom then will get things paid up mate.” On page 3 of the record the pursuer avers that “Solicitors were instructed to prepare the necessary paperwork which was never signed”. The description of the paperwork as ‘necessary’ in this case is important because it indicates, to me, an acknowledgement on record that the document envisaged by the parties, be it a lease or assignation of lease, had to be in writing. Having considered the terms of the text messages and the averments on record, I am of the opinion, the contract pled contains a suspensive condition, namely that the agreement is conditional upon ‘the necessary paperwork’, which I take to be a lease or assignation of lease, being drawn up and I infer, executed and delivered to the defender or his agents, by the pursuer. That being so, an issue arises in relation to the legal nature and effect of a suspensive condition, in a case such as this. The classification of obligations and the basis upon which they become enforceable was discussed by Lord Hope in Costain Building and Civil Engineering Ltd v Scottish Rugby Union plc 1993 S.C. 650; 1994 S.L.T. 573. He said:
“Before I come to examine the provisions of the contract, I should say something about the meaning of various words by which the nature of debts and other obligations are classified in the authorities. Erskine, An Institute of the Law of Scotland (8th edn.), III, 1, 3 states that obligations are either pure, or to a certain day, or contingent. The same classification is found in Gloag on Contract (2nd edn.), pp. 270 – 272 , where the words pure, future and conditional or contingent are used to describe the same concepts. An obligation is pure when it can be enforced immediately because it is not subject to any condition. An obligation is future, or to a certain day as Erskine puts it, when, although not presently exigible, it is dependent on no other condition than the arrival of the day which has been fixed for its performance. It exists from the date when the obligation was entered into, but there is no entitlement to enforce performance of it until the day for performance has arrived. An obligation is conditional or contingent if its enforceability depends upon an event which may or may not happen, or if it is subject to a resolutive condition by which it may cease to be exigible on the occurrence of some uncertain event. Erskine states that a conditional obligation has no obligatory force until the condition is purified, because it is in that event only that the party declares his intention to be bound and consequently no proper debt arises against him until it actually exists. On his analysis the condition of an uncertain event suspends not only the execution of the obligation but the obligation itself. Bell's Commentaries , i, 332, adopts the same classification when he states: “Debts are either presently due; or due at a future day certain; or due provisionally, in a certain event. The first are called pure; the second, future; the last, contingent debts.”
In the context of the present case the text messages referred to above can only mean, in my opinion, that the contract was conditional upon a written lease or assignation of the lease, entitling the defender to occupy and use the land as a fishery, being drawn up and, I infer, executed and delivered. That was a suspensive condition of the agreement between the parties. The condition was never purified because the parties agree in their pleadings that no lease was ever signed. A full reading of the text messages above discloses that problems arose between the parties and negotiations broke down. However, Mr Thorley argued a binding contract was agreed before the break off of relations. Ms Grant asserts that negotiations were at an advanced stage but no agreement was reached or if there was it was subject to a suspensive condition, which was never purified.
[13] A real right in land can only be transferred, between parties, by a written document, in terms of s1(2)(b) of the Requirements of Writing (Scotland) Act 1995. Writing is necessary to create, transfer, vary or extinguish a real right in land in Scotland. See the opinion of Lord Drummond Young in The Advice Centre for Mortgages v McNicoll 2006 SLT 591 and observations to the same effect by Lord Tyre in Gyle Shopping Centre General Partners Ltd v Marks and Spencer Plc [2014] CSOH 122; also Gray v MacNeil's Executor 2016 G.W.D. 5-119 (Sheriff C Dickson). The dispute in the present case, however, is one about the meaning and constitution of a contract for the transfer of a real right in land which engages s 1(2)(a)(i) of the 1995 Act. Accordingly, in my judgment, the question in this case becomes, can an obligation to pay money directly arising from a contract for the transfer of a real right in land, which is subject to a suspensive condition which was never purified, be itself the subject of an action for specific implement? In my opinion such an obligation cannot. It is unenforceable because the obligation to pay is wholly contingent upon and only becomes enforceable once the suspensive condition is satisfied or purified, which the parties agree, on record, never happened in this case. In that respect the averments of the pursuer about the constitution of a contract for the sale of the business, including a provision for the transfer of a real right in land, even if established by proof, are irrelevant, because the sale was wholly conditional upon the satisfaction of a condition precedent relating to the creation and I infer execution and delivery of a formal lease or assignation of lease, which never happened. I pause only to observe that, in my opinion, it would be entirely prudent for a prospective purchaser of a business which consisted entirely of a lease to occupy and use land with associated pond, pontoons, boats, fishing tackle and outhouses on it, to insist upon a formal lease or assignation of lease as part of the deal. A written lease or assignation of lease was necessary in this case, in my view, both to satisfy the terms of s 1(2)(b) of the 1995 Act and fulfil the terms of the parties’ agreement.
The operation of the principle of rei interventus
[13] However, Mr Thorley argued an exception applies. The defender is in occupation of the lease premises and is therefore personally barred by operation of the doctrine of rei interventus from withdrawing from the contract on that basis. The difficulty I have with that argument is that the phrase rei interventus does not appear, at any point, on the face of the record. The sole basis averred which would warrant the application of the principle is the averment that the defender has taken over the business. Even if the phrase rei interventus was pled, in my opinion it would avail the pursuer of nothing, as the law in this area is now reformed (see s1(5) of the 1995 Act, below) and the concepts and principles associated with what were formerly known as rei interventus and homologation are now contained within a statutory exception or provision contained within ss 1(3) and (4) of the Requirements of Writing (Scotland) Act 1995. As explained in The Advice Centre for Mortgages,the scheme of section 1 of the Act recognises that with regard to personal rights between parties, as distinct from real rights in and to property which if created prevail against all other claims, a new statutory regime of personal bar was introduced by the legislation. If a party can establish he has acted on the strength of a contract to the certain knowledge of the other party to the contract and additionally can demonstrate he has been materially and adversely affected by so acting then the law will not allow that other party to withdraw from or deny the substance of the contract, by reason only of a defect in the form of the contract. Sub-section 1(2) of the 1995 Act provides that a written or traditional document (s2) or an electronic document (s9B) is required to constitute a contract for the transfer of a real right in land. However, the subsection also provides:
“(3) Where a contract, obligation or trust mentioned in [subsection (2)(a)] above is not constituted in a document complying with section 2 or, as the case may be, section 9B of this Act, but one of the parties to the contract, a creditor in the obligation or a beneficiary under the trust (“the first person”) has acted or refrained from acting in reliance on the contract, obligation or trust with the knowledge and acquiescence of the other party to the contract, the debtor in the obligation or the truster (“the second person”)—
(a) the second person shall not be entitled to withdraw from the contract, obligation or trust; and
(b) the contract, obligation or trust shall not be regarded as invalid,
on the ground that it is not so constituted, if the condition set out in subsection (4) below is satisfied.
(4) The condition referred to in subsection (3) above is that the position of the first person—
(a) as a result of acting or refraining from acting as mentioned in that subsection has been affected to a material extent; and
(b) as a result of such a withdrawal as is mentioned in that subsection would be adversely affected to a material extent.
(5) In relation to the constitution of any contract, obligation or trust mentioned in [subsection (2)(a)] above, subsections (3) and (4) above replace the rules of law known as rei interventus and homologation.”
As was made clear in The Advice Centre for Mortgages, writings necessary to create, transfer, vary or extinguish a real right in land mentioned in s1(2)(b) of the Act are excluded from the operation of the personal bar provisions contained in ss 1(3) and (4). However, if an opportunity arises for a pleader to plead the personal bar provisions which relate to s 1(2)(a) of the Act certain consequences follow. A duty of candour applies. In my opinion, in any case where a pleader seeks to plead an exception or statutory provision like this, then as a bare minimumthe record in a separate article of condescendence must give full notice of the facts and circumstances which demonstrate how, and in what way, the party disadvantaged by the denial of the contract, acted or refrained from acting with the full knowledge and acquiescence of the other party. Equally necessary are averments clearly articulating how the party relying on the provision or exception has been adversely affected to a material extent by so acting and reasons stated why, in those circumstances, the other party is personally barred from denying the substantive content of, or withdrawing from, the contract but rather must, on the contrary, on the facts, if established, be held bound by the contract, despite its informality. I would also consider essential in such a writ a separate plea in law, in support of the exception or statutory provision, as an alternative legal basis upon which decree, if the facts averred are relevant and established, can be granted. In the present case the record contains no such condescendence or basis as would be capable of supporting a plea of personal bar and for that reason also the case, as pled, is irrelevant and lacking in necessary specification. A similar view was expressed, about the need for pre-proof clarity of the issue to be determined, by Lord Bracadale in Mitchell v Caversham Management Ltd [2009] CSOH 26 at para 23:
“It seems to me that what is required is for the pursuers to be able to point to specific actings or examples of refraining from acting and that these must be known to and acquiesced in by the other party. These provisions provide relief from a failure to meet the general requirements as to written agreement. That would require a clear identification of the actings or refraining from acting. Further, the actings or refraining from acting require to [be] known about and acquiesced in by the other party. Accordingly, they should be capable of clear identification in order that the relevant knowledge and acquiescence of the other party may be ascertained.”
See also Coatbridge Retail No 1 Ltd v Oliver 2010 G.W.D. 19-374 (Sheriff P Hammond at para 42). Thus, I am not persuaded this record is fit for proof, on the argument advanced by Mr Thorley, given the paucity of specification of the only basis upon which an informal contract constituting the transfer of a real right in land could be said to be binding on the defender. But in any event, I am also of the opinion that the case is irrelevant because the suspensive condition was never purified and accordingly specific implement cannot be enforced by court decree upon the defender who, on my analysis of the record and incorporated text messages, only agreed to be bound and hence legally compellable by the court, on condition that a formal lease or assignation of lease was drawn up, executed and I infer delivered, which parties agree, on record, never happened.
Decision
[14] For the reasons advanced above I shall give effect to the defender’s second and third pleas in law, dismiss the action and assoilzie the defender from the craves of the writ.
Expenses
[15] Parties were agreed that the usual rule should apply; accordingly, I will award the expenses of the action to the defender.
Sheriff T Welsh QC
Edinburgh Sheriff Court
3 May 2016.